Royce Brown v. John F. Caraway , 719 F.3d 583 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1439
R OYCE B ROWN,
Petitioner-Appellant,
v.
JOHN F. C ARAWAY, W ARDEN,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:12-cv-00028-WTL-WGH—William T. Lawrence, Judge.
A RGUED JANUARY 18, 2013—D ECIDED M AY 10, 2013
Before P OSNER, F LAUM, and SYKES, Circuit Judges.
F LAUM , Circuit Judge. In 1996, a jury in the district
court for the District of Delaware convicted Royce
Brown of one count of possession with intent to
distribute cocaine base and one count of possession of
a firearm by a felon. At sentencing, the district court
classified Brown as a “career offender” under U.S.S.G.
§ 4B1.1. Brown filed a timely 28 U.S.C. § 2255 motion
arguing that “counsel was ineffective for failure to
object to his sentencing as a career offender which
2 No. 12-1439
resulted in his sentence being a minimum of 360 months
instead of between 262 and 327 months.” The district
court rejected this argument, and the Third Circuit
denied a certificate of appealability.
Now incarcerated in Indiana, Brown filed a pro se
habeas petition under 28 U.S.C. § 2241 in the Southern
District of Indiana, contending that under Begay v.
United States, 553 U.S. 137 (2008), his prior Delaware
conviction for Arson in the Third Degree did not
qualify as a crime of violence under U.S.S.G. § 4B1.1. The
district court dismissed his habeas petition sua sponte,
reasoning that “the savings clause embodied in 2255(e)
requires a claim of actual innocence directed to the under-
lying conviction, not merely the sentence.” Brown now
appeals, aided by appointed counsel.
As an initial matter, the district court erred in con-
cluding that challenges to a sentence (rather than the
underlying conviction) are categorically barred under
28 U.S.C. § 2241. On the merits, Brown is entitled to
relief under § 2241. Under Begay, Brown’s prior convic-
tion for Arson in the Third Degree under Delaware
law does not qualify as “generic” arson under the enum-
erated crimes clause of the career offender Guideline,
nor is it covered by the residual clause. We therefore
reverse the decision of the district court and hold
that Brown is entitled to relief under § 2241.
I. Background
In 1995, officers conducting a probation search of
Brown’s residence discovered 345 grams of crack cocaine,
No. 12-1439 3
$45,000 in currency, and a loaded .380 semiautomatic
handgun. On June 27, 1996, a jury in the district court
for the District of Delaware convicted Brown of one
count of possession with intent to distribute cocaine
base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(a),
and one count of possession of a firearm by a felon in vio-
lation of 18 U.S.C. § 922(a)(1).
The presentence investigation report recommended
sentencing Brown as a career offender under U.S.S.G.
§ 4B1.1, characterizing his two prior felony convictions—
one for second-degree assault in violation of 11 Del. C.
§ 612(a)(3); the other for Arson in the Third Degree in
violation of 11 Del. C. § 801—as “crimes of violence.”
Brown’s designation as a career offender resulted in
an offense level of 37 and a Guidelines range of
360 months to life. Absent the career offender enhance-
ment, Brown faced an offense level of 34, which when
combined with Brown’s criminal history category of VI,
would have resulted in a Guidelines range of 262 to
327 months. The court rejected Brown’s argument that
his assault conviction was not a crime of violence and
adopted the probation officer’s recommendation. The
court imposed a 360-month sentence on the drug charge
and a 120-month sentence on the gun charge to run con-
currently, with five years of supervised release. The
district court imposed this sentence prior to United States
v. Booker, 543 U.S. 220 (2005) and therefore viewed
the application of the Guidelines range as mandatory.
The Third Circuit affirmed.
In 2000, Brown filed a timely motion under 28 U.S.C.
§ 2255 to vacate his sentence. He argued that his counsel
4 No. 12-1439
was ineffective for failing to object to his sentencing as
a career offender, which resulted in a substantially
higher Guidelines range. The district court rejected this
argument, holding that the “record clearly supports a
finding of petitioner’s status as a career offender,” and
accordingly denied his motion as well as a certificate
of appealability. The Third Circuit also denied a certif-
icate of appealability.
Brown is currently incarcerated in the federal peniten-
tiary in Terre Haute, Indiana. On February 7, 2012, he
filed a pro se habeas petition under 28 U.S.C. § 2241 in the
District Court for the Southern District of Indiana. He
argued that under Begay v. United States, 553 U.S. 137(2008), his prior Delaware conviction for Arson in the
Third Degree did not qualify as a “crime of violence”
under U.S.S.G § 4B1.1. He claimed that therefore he
was “actually innocent of being a career offender” and
accordingly that the sentencing court should have used
a Guidelines range of 262 to 327 months, rather than
360 months to life.
Two weeks after Brown filed this petition, and before
he served the Government, the district court dismissed
the habeas petition sua sponte. The court reasoned that
“the savings clause embodied in 2255(e) requires a claim
of actual innocence directed to the underlying convic-
tion, not merely the sentence.” It noted that Brown did
not contend that he was actually innocent of his under-
lying crimes, rather, he contended only that the career
offender designation should not have been applied to
him. The court therefore dismissed the petition without
soliciting any response from the Government.
No. 12-1439 5
Brown filed a timely notice of appeal. Because
Brown never served the Government with the petition,
the Government filed a motion for an order of non-in-
volvement with the appeal, which we granted. How-
ever, on November 19, 2012, we vacated the non-involve-
ment order and requested that the respondent file a
brief on or before December 28, 2102. The Govern-
ment complied.
II. Discussion
We review the denial of a § 2241 petition de novo. Hill
v. Werlinger, 695 F.3d 644, 648 (7th Cir. 2012). Federal
prisoners who seek to bring collateral attacks on their
conviction or sentences must ordinarily bring an action
under 28 U.S.C. § 2255, “the federal prisoner’s substitute
for habeas corpus.” Brown v. Rios, 696 F.3d 638, 640 (7th
Cir. 2012). However, a federal prisoner may petition
under § 2241 “if his section 2255 remedy ‘is inadequate
or ineffective to test the legality of his detention.’ ” Id.
(citing § 2255(e), the “Savings Clause”). In re Davenport,
147 F.3d 605 (7th Cir. 1998), established three conditions
for this exception to apply. Id. at 610-12. First, the pris-
oner must show that he relies on a “statutory-interpreta-
tion case,” rather than a “constitutional case.” Rios,
696 F.3d at 640. Second, the prisoner must show that he
relies on a retroactive decision that he could not have
invoked in his first § 2255 motion. Id. “The third condi-
tion is that [the] sentence enhancement . . . have been
a grave enough error to be deemed a miscarriage of
justice corrigible therefore in a habeas corpus proceed-
6 No. 12-1439
ing.” Id.; see also Davenport, 147 F.3d at 611 (a prisoner
must show “a fundamental defect in his conviction
or sentence”).
In a recent collateral challenge also based on Begay,
we found that the first two conditions were clearly satis-
fied. Rios, 696 F.3d at 640. We recognized that “Begay
was not a constitutional case, but a statutory-interpreta-
tion case,” thus satisfying Davenport’s first consideration,
and that there, the prisoner “could not have invoked
[Begay] in his first section 2255 motion either, because
Begay hadn’t yet been decided.” Id. Likewise here, Brown
brings a challenge based on Begay (the same statutory
interpretation case), which had not been decided as of
Brown’s first § 2255 motion. The Government does not
contest the fact that Begay was a statutory interpretation
case, though it does dispute the notion that Brown
could not have raised his current argument in his
first section 2255 motion. We conclude that Brown
could not have raised his current argument in his first
section 2255 motion because it was foreclosed by
binding precedent at that time; this argument will be
addressed in greater detail in Section B, infra, in light of
our more recent reasoning in Werlinger. 695 F.3d at 648.
The Government concedes that the third Davenport
consideration is satisfied here, and we think rightfully
so. The Government reasons that our decision in Narvaez
v. United States, 674 F.3d 621 (7th Cir. 2011), requires
finding that the erroneous application of the mandatory
career offender Guideline is a fundamental sentencing
defect that can be remedied under § 2241. Narvaez con-
cluded that a misapplication of the mandatory career
No. 12-1439 7
offender Guideline presented a cognizable non-constitu-
tional claim for initial collateral relief because the error
resulted in a miscarriage of justice. Id. at 627-28. Although
Narvaez was a § 2255 case, the Government concedes
that its holding forecloses a credible argument that an
identical error is not a “fundamental sentencing defect”
justifying successive § 2241 relief under Davenport.1
1
In reaching the contrary conclusion that a prisoner may
never bring a collateral challenge to a sentence under § 2241,
the district court misinterpreted our decision in Unthank v.
Jett, 549 F.3d 534 (7th Cir. 2008). In that case, the prisoner
brought a § 2241 action challenging his sentence, but he did not
allege that a retroactively applicable Supreme Court decision
(like Begay) entitled him to relief. Id. at 534-35. He instead
contended that he was “entitled to a reduced punishment
because, after sentence was imposed in his federal case, one
of his state convictions was vacated,” and that “[r]ecalculating
his criminal history in light of the state court’s decision
would (or at least could) have led to a lower federal pen-
alty.” Id. We concluded that the prisoner could not seek
savings clause relief because he failed to prove that § 2255
was “inadequate or ineffective.” Id. at 536. Unthank was not
entitled to relief under § 2241 because he did not contend that
“a glitch in § 2255 prevent[ed] application to his situation of
a retroactive decision of the Supreme Court.” Id. In the present
case, by contrast, Brown alleges precisely that: he argues
that he is entitled to relief under a retroactively applicable
Supreme Court decision (Begay), and that “Congress may have
overlooked the possibility that new and retroactive statutory
decisions could support collateral review.” Taylor v. Gilkey,
314 F.3d 832, 835 (7th Cir. 2002). Brown’s claim therefore
(continued...)
8 No. 12-1439
The Government is correct. In Narvaez, we concluded
that Begay’s postconviction clarification in the law dem-
onstrated that a § 2255 petitioner had been improp-
erly designated as a career offender. As a result, “his
period of incarceration exceed[ed] that permitted by law
and constitute[d] a miscarriage of justice.” Id. at 623. We
reasoned that “[t]he career offender status illegally in-
creased [the defendant’s] sentence approximately five
years beyond that authorized by the sentencing scheme,”
which went to the “fundamental legality of his sentence
and assert[ed] an error that constitute[d] a miscarriage
of justice.” Id. at 629. Although Narvaez arose in a
distinct procedural context (there, the § 2255 motion
was petitioner’s first), its reasoning regarding the nature
of the error applies here: To classify an individual as
belonging to a “subgroup of defendants, repeat violent
offenders” is to “increase, dramatically, the point of
departure of his sentence” and accordingly is “certainly
as serious as the most grievous misinformation that
has been the basis for granting habeas relief.” Id. Thus,
the misapplication of the sentencing guidelines, at least
where (as here) the defendant was sentenced in the pre-
1
(...continued)
falls into the “special and very narrow exception” to the gen-
eral rule, emphasized in Unthank, that sentencing errors are
generally not cognizable on collateral review: he alleges that
a “postconviction clarification in the law has rendered
the sentencing court’s decision unlawful.” Narvaez, 674 F.3d
at 627.
No. 12-1439 9
Booker era, represents a fundamental defect that con-
stitutes a miscarriage of justice corrigible in a § 2241
proceeding.
In reaching this conclusion, we depart from the views
of some of our sister circuits. For example, in Gilbert v.
United States, 640 F.3d 1293 (11th Cir. 2011) (en banc), a
case also involving a collateral Begay claim, the Eleventh
Circuit addressed the question of whether “the savings
clause of § 2255(e) appl[ies] to claims that the sen-
tencing guidelines were misapplied in the pre-Booker
mandatory guidelines era in a way that resulted in a
substantially longer sentence that does not exceed the
statutory maximum.” Id. at 1306. The court determined
that savings clause relief is unavailable in those circum-
stances, noting that the clause’s text “does not indicate
that it authorizes the filing of a § 2241 petition to
remedy a miscalculation of the sentencing guidelines
that already has been, or may no longer be, raised in a
§ 2255 motion,” id. at 1307, and citing the “finality-busting
effects of permitting prisoners to use the savings clause
as a means of evading the second or successive mo-
tions bar,” id. at 1309. These policy interests prompted
the Eleventh Circuit to “decline Gilbert’s invitation to
undermine the finality of judgment principles by using
§ 2255(e) to knock down the second or successive
motions bar that Congress constructed in § 2255(h)” and
conclude that sentencing claims cannot be brought
under § 2241 via § 2255(e). Id. at 1313. The Fifth Circuit
has similarly disallowed federal prisoners from pursuing
relief under the savings clause when they challenge
only their status as career offenders, reasoning that the
10 No. 12-1439
savings clause is available only to prisoners asserting
actual innocence (i.e., that they were convicted of a nonex-
istent crime). See In re Bradford, 660 F.3d 226, 230 (5th
Cir. 2011).
We respectfully disagree with this interpretation of
the savings clause. The text of the clause focuses on the
legality of the prisoner’s detention, see § 2255(e) (ap-
plicable where § 2255 remedy is “inadequate or ineffec-
tive to test the legality of his detention”) (emphasis added);
it does not limit its scope to testing the legality of the
underlying criminal conviction. As indicated in our
discussion of Narvaez, sentences imposed pursuant to
erroneous interpretations of the mandatory guidelines
bear upon the legality of the petitioner’s detention for
purposes of the savings clause. See 674 F.3d at 629. For
a prisoner serving a sentence imposed when the guide-
lines were mandatory, a § 2241 habeas petition raising
a guidelines error “tests the legality of his detention”
within the meaning of the savings clause, § 2255(e),
because the guidelines had the force and effect of law;
the only lawful sentence was a guidelines sentence.
Accordingly, provided that the other Davenport condi-
tions are present, we conclude that a petitioner may
utilize the savings clause to challenge the misapplication
of the career offender Guideline, at least where, as here,
the defendant was sentenced in the pre-Booker era.2
2
Because our conclusion creates a conflict among the circuits,
we circulated the opinion before release to all judges in
(continued...)
No. 12-1439 11
We thus turn our attention to the merits. Although the
district court never adjudicated Brown’s § 2241 claim on
the merits, the Government contends that the district
court’s judgment should be affirmed on alternate grounds:
specifically, that Arson in the Third Degree under Dela-
ware law is a “crime of violence” for purposes of the
career offender enhancement. See In re UAL Corp., 468 F.3d
444, 449 (7th Cir. 2006) (“A winner may defend its judg-
ment on any ground preserved in the district court.”).
A defendant is a career offender if: (1) the defendant
was at least eighteen years old at the time of the instant
offense; (2) the instant offense is a felony that is either
a crime of violence or a controlled substance offense;
and (3) the defendant has at least two prior felony con-
victions for a crime of violence or controlled substance
offense. U.S.S.G. § 4B1.1(a). The career offender Guideline
defines “crime[s] of violence” in the following way:
a. The term “crime of violence” means any offense
under federal or state law, punishable by impris-
onment for a term exceeding one year, that—
(1) has an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or [b] otherwise
2
(...continued)
active service pursuant to 7th Cir. R. 40(e). No judge requested
a rehearing en banc.
12 No. 12-1439
involves conduct that presents a serious po-
tential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). We must therefore determine whether
Brown’s prior conviction for “recklessly damag[ing] a
building by intentionally starting a fire or causing an
explosion,” 11 Del. C. § 801(a), qualifies as a crime of
violence under the terms of the career offender Guideline.
A. Arson in the Third Degree is Not a “Crime of Vio-
lence”
Under the plain language of the Guideline, Arson in
the Third Degree is a crime of violence if it satisfies
Clause 1 (the “elements clause”), Clause 2(a) (the “enu-
merated crimes clause”) or Clause 2(b) (the “residual
clause”).
(i) Arson in the Third Degree Does Not Satisfy the
“Elements Clause”
The Government concedes that Delaware’s third-
degree arson statute does not satisfy the elements
clause. Nothing on the face of the statute involves “the
use, attempted use, or threatened use of physical force
against the person of another.” § 4B1.2(a); see United
States v. Sonnenberg, 628 F.3d 361, 365 (7th Cir. 2010)
(elements clause focuses on “the statute on its face”).
No. 12-1439 13
(ii) Arson in the Third Degree Does Not Satisfy the
“Enumerated Crimes Clause”
The enumerated crimes in Clause 2(a) includes the
crime of “arson.” U.S.S.G. § 4B1.2(a)(2). Under Taylor v.
United States, 495 U.S. 575 (1990), however, the fact that
Delaware labels the relevant predicate offense as “Arson
[in the Third Degree]” is not dispositive as to whether
that crime constitutes arson within the meaning of
§ 4B1.2(a)(2). See United States v. Mathews, 453 F.3d 830,
833 n.7 (7th Cir. 2006) (observing that in Taylor, “[t]he
Court opted for a uniform or ‘generic’ definition” of
burglary and rejected the view that “burglary was
burglary [for purposes of the ACCA] whenever the
state had labeled it as such”). Taylor instructs that to
determine whether Delaware’s third-degree arson is
contemplated by the enumerated crime of “arson” in the
Guideline, we must compare Arson in the Third Degree
under Delaware law with the “modern generic view” of
the common law crime of arson. Id. at 589. If Arson in
the Third Degree is broader than generic arson—meaning
that it criminalizes conduct that generic arson does not—
then it does not qualify as arson within the meaning of
the career offender Guideline. See Mathews, 453 F.3d at833 n.7; Taylor, 495 U.S. at 589-90 (concluding that, with
regard to burglary as a predicate offense, Congress “had
in mind a modern ‘generic’ view of burglary, roughly
corresponding to the definitions of burglary in a
majority of the States’ criminal codes,” “regardless
of technical definitions and labels under state law”).
In Begay, the Supreme Court noted that arson means
“causing a fire or explosion with ‘the purpose of,’ e.g.,
14 No. 12-1439
‘destroying a building . . . of another ’ or ‘damaging any
property . . . to collect insurance.’ ” 553 U.S. at 145 (quoting
Model Penal Code § 220.1(1) (1985)) (emphasis added,
ellipses in original).3 Consistent with that definition,
several circuits have understood generic arson as
requiring a mens rea of willfulness or maliciousness. See
United States v. Velez-Alderete, 569 F.3d 541, 544 (5th Cir.
2009); United States v. Whaley, 552 F.3d 904, 907 (8th Cir.
2009); United States v. Velasquez-Reyes, 427 F.3d 1227, 1230
(9th Cir. 2005). The Supreme Court has described the
mens rea of willfulness or maliciousness as requiring a
purpose to inflict injury. See Exxon Shipping Co. v. Baker,
554 U.S. 471, 494 (2008).
Accordingly, because the Delaware law punishes one
who “recklessly damages a building by intentionally
3
Begay’s definition of generic arson derives directly from
Model Penal Code § 220.1(1). Arson in the Third Degree
under Delaware law, by contrast, corresponds to a separate
Model Penal Code provision: § 220.1(2), “reckless burning or ex-
ploding,” which punishes one who “purposely starts a fire
or causes an explosion . . . and thereby recklessly . . . places a
building or occupied structure of another in danger of
damage or destruction.” This fact bolsters our conclusion
that Arson in the Third Degree is distinct from “generic” arson
as defined in Begay. Further, our analysis will not provide
a loophole for all Delaware arsonists to avoid application of
the career offender Guideline: Delaware has a provision
that squarely fits the “generic” definition of arson as defined
in Begay: Arson in the Second Degree, which punishes one
who “intentionally damages a building by starting a fire or
causing an explosion,” clearly qualifies. 11 Del. C. § 802(a).
No. 12-1439 15
starting a fire or causing an explosion,” 1 Del. C. § 801(a)
(emphasis added), a defendant need not have had
“the purpose of” destroying property, as specifically
required in Begay to constitute the generic crime of ar-
son. 553 U.S. at 145. For example, Delaware’s law is
broad enough to cover a defendant who lawfully lights
a cigarette or sets a bonfire on his own property and is
merely reckless as to whether the fire might spread and
damage an adjoining building. The generic crime of arson
as defined in Begay, by contrast, is not so broad.
The Government disagrees with this characterization
of generic arson. It argues that Begay did not purport to
be defining the elements of the contemporary crime of
arson, as Begay was “not even an arson case.” It accord-
ingly argues that Brown’s reliance on a “passing paren-
thetical statement” in Begay defining generic arson as re-
quiring an element of purposefulness is misplaced.
However, a closer reading of Begay reveals that the
Court’s statement characterizing generic arson as em-
bracing a purposefulness element has more significant
force. In Begay, the Court considered whether driving
under the influence (“DUI”) qualified as a “violent
felony” under the residual clause of the Armed Career
Criminal Act (“ACCA”)4 and determined that the
ACCA’s “listed examples—burglary, arson, extortion, or
crimes involving the use of explosives—illustrate the
kinds of crimes that fall within the statute’s scope.” 553
4
The ACCA’s residual clause is identical to that of the career
offender Guideline.
16 No. 12-1439
U.S. at 142. The Court proceeded to analyze the ele-
ments of “burglary,” “arson,” and “extortion,” and con-
cluded that each involved “purposeful, violent, and
aggressive conduct.” Id. at 144-45 (quotation marks omit-
ted). Based on its review of these enumerated offenses,
the Court concluded that the residual clause, too,
applied to crimes involving “purposeful, violent, and ag-
gressive conduct.” Id. We view the Court’s analysis
as therefore supporting our conclusion that generic
arson contemplates purposeful, rather than reckless,
conduct.
Further, the Government has not cited any precedent
contradicting the Supreme Court’s statement indicating
that the enumerated offenses require an element of pur-
posefulness, or any precedent supporting its alternate
suggestion that mere recklessness is the requisite mens
rea for generic arson. At most, it suggests that there is a
divergence of authority on the question. But the “categori-
cal” approach embraced by the Supreme Court in
Taylor requires that we adopt a single, nationwide def-
inition of generic arson and then evaluate whether a
particular state statute substantially corresponds to
that definition. See 495 U.S. at 592 (“We think that ‘bur-
glary’ in §924(e) must have some uniform definition
independent of the labels employed by the various
States’ criminal codes.”).
The Government argues that “[e]ven if the lack of
consensus regarding the precise mental state required
for contemporary arson was not fatal to Brown’s claim,
the fact that he was convicted under a statute pro-
scribing intentional conduct likely means that he was
No. 12-1439 17
convicted of generic arson.” However, the Supreme
Court rejected this line of argument in Begay with
respect to the crime of driving under the influence.
There, the Government argued that “the knowing nature
of the conduct that produces intoxication combined
with the inherent recklessness of the ensuing conduct
more than suffices to create an element of intent” for
purposes of ACCA’s residual clause. Id. at 145 (quotation
marks omitted). The Court disagreed. It recognized that
“a drunk driver may very well drink on purpose,” id.,
but nevertheless concluded that drunk driving was not
analogous to “violent and aggressive crimes committed
intentionally such as [generic] arson” and the other
enumerated offenses. Id. at 148. Likewise here, a
defendant may very well light a cigarette “on purpose,”
but the relevant mens rea inquiry surrounds the conse-
quences of that act—here, recklessly damaging a build-
ing. 11 Del. C. § 801(a) (emphasis added). The fact that
Arson in the Third Degree under Delaware law includes
a single element of intent, therefore, cannot be under-
stood to require a finding that third-degree arson sub-
stantially corresponds to the generic crime of arson.
We conclude that Arson in the Third Degree under Dela-
ware Law is not generic arson for the purposes of the
career offender Guideline and thus is not covered by
the enumerated offenses clause.
(iii) Arson in the Third Degree Does Not Satisfy
the “Residual Clause”
We must next consider whether Arson in the Third
Degree is covered by the residual clause of the career
18 No. 12-1439
offender enhancement, which applies to any crime that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a). In Begay, the Supreme Court held that the
ACCA’s identical residual clause applies only to crimes
that involve “purposeful, violent, and aggressive con-
duct.” 553 U.S. at 144-45 (quotation marks omitted).
Because Delaware’s third-degree arson statute crim-
inalizes the act of “recklessly damaging a building,” 11
Del. C. § 801(a) (emphasis added), Brown argues that
it does not contemplate the sort of purposeful conduct
contemplated by the residual clause under Begay.
We agree.
The Government rejects Brown’s reading of the
Delaware statute, again emphasizing that the statute
criminalizes some intentional conduct. See id. (third-
degree arson punishes one who “recklessly damag[ing]
a building by intentionally starting a fire or causing an
explosion”) (emphasis added). It argues that statutes
proscribing any intentional conduct satisfy the residual
clause under Begay, and cases involving “pure” reckless-
ness are distinguishable from the present one.
However, the Delaware statute carries an equivalent
mens rea burden to the DUI crime at issue in Begay,
which did not qualify as sufficiently “purposeful” so as
to fall within the scope of the residual clause. We’ve
explained that “[i]n Begay, . . . the Court rejected a
reading of the ACCA that would have allowed the
drunk driver’s intentional acts of drinking and driving,
followed by recklessness with regard to the behavior that
the statute made criminal (behavior that represented
No. 12-1439 19
the consequences of the intentional act of drinking), to
satisfy the statute.” United States v. Woods, 576 F.3d 400,
409 (7th Cir. 2009) (emphasis added). Applying the
Court’s logic here, the act of intentionally setting a
fire, followed by recklessness with respect to the possi-
bility that the fire will cause damage (“the consequences
of the intentional act”) likewise cannot constitute a
crime of violence under the residual clause. The Gov-
ernment’s argument that a statute contemplates “pur-
poseful” conduct under Begay so long as the statute
includes a mens rea of intent with regard to any act, even
if it includes a mens rea of recklessness with regard to
the consequences of that act, is unconvincing: We’ve
explained that “[e]very crime of recklessness neces-
sarily requires a purposeful, volitional act that sets
in motion the later outcome.” Id. at 411.
This conclusion is bolstered by our decision in
United States v. Woods, a case interpreting the career
offender Guideline. In Woods, we construed Begay to
mean that “the residual clause encompasses only pur-
poseful crimes; crimes with the mens rea of recklessness
do not fall within its scope.” 576 F.3d at 412-13. We ac-
cordingly concluded in Woods that involuntary man-
slaughter was not a “crime of violence” under Begay
because the mens rea required for the offense was reck-
lessness rather than intent. Id. at 410-13. By the same
logic, because Arson in the Third Degree under Dela-
ware law criminalizes “recklessly damag[ing] a building
by intentionally starting a fire or causing an explosion,”
11 Del. C. § 801(a) (emphasis added), third-degree
arson cannot serve as a career offender predicate.
20 No. 12-1439
The Government argues, however, that the continuing
validity of Woods is questionable after Sykes v. United
States, 131 S. Ct. 2267 (2011). In Sykes, the Supreme
Court determined that Indiana’s crime of vehicular
flight is a “violent felony” under the ACCA’s residual
clause. Id. at 2277. The Court explained that the
residual clause’s requirement that an offense “present[ ]
a serious potential risk of physical injury to another”
calls for an inquiry into risk, explaining that “[i]n
general, levels of risk divide crimes that qualify from
those that do not.” Id. at 2275. Because “[s]erious and
substantial risks are an inherent part of vehicle flight,” id.
at 2276, the Supreme Court determined that the
Indiana crime is covered by the residual clause.
Based on this analysis, the Government urges us to
reject the inquiry into mens rea emphasized in Begay
and Woods and instead embrace an assessment of risk
to determine whether third-degree arson satisfies the
residual clause. Because the arson offense at issue here
involves serious potential risk of injury to others in the
ordinary case, the Government continues, Delaware’s
Arson in the Third Degree should qualify under the
residual clause.
But Sykes can be reconciled with Begay and Woods. The
Indiana law addressed in Sykes “makes it a criminal
offense whenever the driver of a vehicle knowingly or
intentionally ‘flees from a law enforcement officer,’ ” id. at
2270 (quoting Ind. Code § 35-44-3-3 (2004) (emphasis
added)); the statute thus contemplates only purposeful
conduct. This fact was critical to the Court’s endorse-
No. 12-1439 21
ment of a risk inquiry for purposes of determining
whether the crime satisfied the residual clause. See id. at
2275. Sykes drew an explicit distinction between statutes
which criminalize “purposeful or deliberate conduct”
(such as vehicular flight) and statutes with less stringent
mens rea requirements, including recklessness, negligence,
and strict liability crimes (analogous to driving under
the influence, at issue in Begay). Id. at 2275. For cases
involving crimes with stringent mens rea requirements,
the Court indicated that an assessment of risk levels
provides a “manageable standard” for determining
the residual clause’s applicability; for cases involving
a “crime akin to strict liability, negligence and reckless-
ness crimes,” Begay’s “purposeful, violent, and aggressive
formulation” can help to “explain the result.” Id. at 2276.
Accordingly, we interpret Sykes as having recognized
that the purposefulness inquiry embraced in Begay
remains applicable to statutes with less stringent
mens rea requirements, including those with a mens rea
of recklessness.5 For the reasons already articulated,
5
Indeed, even if Sykes did require an evaluation of risk in
the present case (in lieu of the “purposeful, violent, and aggres-
sive” formulation), Delaware’s Arson in the Third Degree
still would not qualify as a predicate offense under the
residual clause. Sykes explained that “a crime involves the
requisite risk [to fall under the residual clause] when the
risk posed by [the crime in question] is comparable to that
posed by its closest analog among the enumerated offenses.” 131
S. Ct. at 2273 (quotation marks omitted). The closest analog
(continued...)
22 No. 12-1439
Delaware’s Arson in the Third Degree qualifies as such
a statute. Delaware’s Arson in the Third Degree law is
not covered by the career offender Guideline’s residual
clause. See Woods, 576 F.3d at 412-13 (“[T]he residual
clause encompasses only purposeful crimes; crimes
with the mens rea of recklessness do not fall within
its scope.”).
Brown has thus demonstrated that Delaware’s Arson
in the Third Degree does not satisfy the elements clause,
the enumerated offenses clause, or the residual clause,
meaning that it does not qualify as a crime of violence
for the purposes of the career offender Guideline. Never-
theless, in its brief, the Government claims that “Brown’s
burden required him to do more than merely show that
his arson conviction was not a crime of violence; rather,
he must clearly make this showing.” (Appellee’s Br. at
5
(...continued)
to Brown’s conviction among the enumerated offenses is
generic arson. But of course, Delaware’s Arson in the Third
Degree, requiring a mens rea of recklessness, is less risky
than generic arson, which requires the commission of an act
intending or knowing that it will cause damage. See Begay,
553 U.S. at 145; Cf. James v. United States, 550 U.S. 192, 203-04
(2007) (finding that the closest analog to “attempted burglary”
was the enumerated offense of “generic” burglary, and that
“attempted burglary” was a crime of violence under the
residual clause because “the risk posed by an attempted
burglary that can serve as the basis for an ACCA enhance-
ment may be even greater than that posed by a typical com-
pleted burglary.”).
No. 12-1439 23
30). It further suggests that Brown “bears the burden
of showing that the essential prerequisites for the extra-
ordinary relief he seeks have all been clearly recognized
by prior case law.” (Appellee’s Br. at 32-33). The Gov-
ernment apparently gleans this claim from the fed-
eral government’s general “interest in the finality of its
criminal judgments,” United States v. Frady, 456 U.S. 152,
166 (1982), as well as the restrictive approach to succes-
sive collateral relief embraced by Congress in the text
of the Antiterrorism and Effective Death Penalty Act of
1996. This argument has no textual basis in § 2241
or § 2255 (neither provision contains reference to a re-
quirement that a prisoner’s entitlement to relief be
“clearly recognized”), and the Government does not
explain how it is grounded in the test we articulated in
Davenport for obtaining habeas relief under § 2241.
At oral argument and subsequently in a letter to the
court, the Government modified its position, explaining
that Brown must show that “(a) the legal basis for his
claim is clear (b) as a result of an intervening precedent.”
From the Government’s point of view, “the narrow
dispute between the parties is simply whether Begay
affects the status of Mr. Brown’s prior conviction with
the requisite degree of clarity necessary to justify succes-
sive collateral relief.”
We may dispense with the purported narrow dispute
between the parties by finding that Begay provided a
“postconviction clarification in the law” that has
“rendered the sentencing court’s decision unlawful.”
Narvaez, 674 F.3d at 627. It is sufficient, for present pur-
poses, that “it is now clear that [Brown] . . . never should
24 No. 12-1439
have been classified as a career offender and never
should have been subjected to the enhanced punish-
ment reserved for such repetitive and violent offend-
ers.” Id. To the extent that the Government’s shifting
argument is grounded in the notion that habeas relief
should be difficult to obtain, we do not quarrel with
this proposition: “sentencing errors are generally not
cognizable on collateral review.” Id. But the stringent
requirements articulated in Narvaez and our other cases
are subject to a “special and very narrow exception”
where a “postconviction clarification in the law has
rendered the sentencing court’s decision unlawful.”
Id. Today we encounter one such rare case.
B. Prior to the Supreme Court’s Ruling in Begay,
Brown’s Argument was Foreclosed by Binding
Precedent
The Government argues that even if Brown was mis-
takenly sentenced as a career offender, he is not entitled
to pursue his claim because he has not established
that section 2255 was inadequate or ineffective to test
the legality of his detention. (Appellee’s Br. at 43). Specifi-
cally, the Government asserts that Brown could have
raised his claim earlier. As previously mentioned, in
Rios we determined that the prisoner had met the
second Davenport condition (requiring the prisoner to
show that he relies on a retroactive decision that he
could not have invoked in his first § 2255 motion)
because his challenge was based on Begay (a retroactive
Supreme Court decision), and his § 2255 petition was
No. 12-1439 25
denied prior to Begay. 696 F.3d at 640. Likewise here,
Brown’s § 2241 petition is based on Begay and the
Delaware District Court denied his § 2255 motion prior
to Begay.
In Werlinger, however, we employed a slightly
higher standard for proving that § 2255 was inadequate
or ineffective: We required the prisoner to show that his
claim was “foreclosed by binding precedent” at the time
of his direct appeal and § 2255 motion. Werlinger, 695
F.3d at 648. Brown argues that he can meet this
heightened standard and is therefore eligible for § 2241
relief.
To this end, Brown argues that binding Third Circuit
precedent prior to Begay foreclosed any contention that
his conviction for Arson in the Third degree was not a
“crime of violence” under the career offender Guide-
line. Brown points us to United States v. Parson, 955 F.2d
858 (3d Cir. 1992), a case in which the Third Circuit
held that a defendant’s prior conviction for first-degree
“reckless endangering” was a “crime of violence” under
the career offender Guideline. Id. at 860. The Third
Circuit observed that “crimes such as drunk driving . . .
present a serious risk of physical harm to a victim
and therefore qualify as predicate ‘crimes of violence’
for purpose of the career offender Guideline.” Id. at 874;
see also United States v. McQuilkin, 97 F.3d 723, 729 (3d
Cir. 1996) (reaffirming that “ ‘purely reckless’ crimes
continue to count as predicate offenses for purposes
of ‘career offender’ consideration”).
26 No. 12-1439
Following Begay, the Third Circuit has since recog-
nized that Parson is no longer good law:
In Parson, we held that a reckless endangering con-
viction was a crime of violence under §4B1.2(a) of
the federal sentencing guidelines. 955 F.2d at 860. In
2008, the Supreme Court decided Begay, which held
that a DUI conviction under New Mexico law did
not fall within the definition of a “violent offender”
under the Armed Career Criminal Act (“ACCA”),
18 U.S.C. §924(e)(2)(B)(ii), since violent felonies
were limited to offenses which “typically involve
purposeful, violent, and aggressive conduct.” 553
U.S. at 144-45, 128 S. Ct. 1581 (citation and internal
quotation marks omitted). Post-Begay, we have held
that “a conviction for mere recklessness cannot con-
stitute a crime of violence” under the federal sen-
tencing guidelines. United States v. Lee, 612 F.3d
170, 195-97 (3d Cir. 2010).
Aguilar v. Att’y Gen. of United States, 663 F.3d 692, 698
n.12 (3d Cir. 2011). Taken together, this precedent sug-
gests that if Brown had made the argument he cur-
rently advances—that the “recklessness” mens rea in
the Delaware criminal statute rendered it ineligible
for treatment as a career-offender predicate—he
would clearly have lost under Parson. It therefore
follows that pre-Begay binding precedent foreclosed
Brown’s argument that Arson in the Third Degree is not
a “crime of violence,” as, its mens rea is mere recklessness.
The Government’s only response to this line of
argument is its familiar claim that Brown’s Delaware
No. 12-1439 27
offense is not a “recklessness” crime because it requires
the intentional act of lighting a fire. (Appellee’s Br. at 46-
47). But we have accepted Brown’s claim in the first
instance that Arson in the Third Degree is fairly charac-
terized as a crime requiring a mens rea of recklessness,
and the Government offers no counterargument to the
notion that Begay changed the law in the Third Circuit
for “recklessness” offenses. Put simply, the Government
does not claim that Brown’s “recklessness” argument,
currently advanced in this Court, would have had any
chance of prevailing in the Third Circuit at the time of
his conviction, nor does it dispute that Begay changed
Third Circuit law and overruled Parson. Because prior
to the Supreme Court’s ruling in Begay Third Circuit
precedent foreclosed the argument advanced today,
Brown has demonstrated that § 2255 would provide
an inadequate or ineffective remedy.
III. Conclusion
For the foregoing reasons, we R EVERSE the decision
below and R EMAND with instructions to reduce Brown’s
sentence to reflect our finding that he is not a career
offender within the meaning of § 4B1.1.
28 No. 12-1439
Statement of E ASTERBROOK, Chief Judge, concerning
the circulation under Circuit Rule 40(e). Justices of the
Supreme Court sometimes file statements explaining
why they have voted not to grant certiorari, even though
they doubt the soundness of the decision under review.
See, e.g., Calhoun v. United States, 133 S. Ct. 1136 (2013)
(statement of Sotomayor, J.). Likewise appellate judges
may explain why they have not voted to hear a case
en banc, even though they doubt the soundness of the
panel’s decision. See, e.g., Freeman United Coal Mining
Co. v. Director, OWCP, 999 F.2d 291 (7th Cir. 1993) (state-
ment of Easterbrook, J.), vacated, 512 U.S. 1231 (1994), in
light of Director, OWCP v. Greenwich Collieries, 512 U.S.
267 (1994). Here, too, I have doubts about the panel’s
decision, though I do not think that a hearing en banc
would help.
The panel holds that a federal prisoner may use 28
U.S.C. §2241 to contest the length of his sentence when
a later decision of the Supreme Court shows that
the judge’s calculation of a range under the Sentencing
Guidelines was erroneous. It reaches this conclusion
despite 28 U.S.C. §2255(e), which provides: “An applica-
tion for a writ of habeas corpus in behalf of a prisoner
who is authorized to apply for relief by motion pursuant
to this section, shall not be entertained if it appears that
the applicant has failed to apply for relief, by motion, to
the court which sentenced him, or that such court has
denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality
of his detention.” Relying on In re Davenport, 147 F.3d
605 (7th Cir. 1998), the panel concludes that a §2255
No. 12-1439 29
motion is “ineffective” when the prisoner relies on a
non-constitutional decision rendered after the statute
of limitations in §2255(f) expired. And relying on Narvaez
v. United States, 674 F.3d 621 (7th Cir. 2011), the panel
concludes that collateral relief must be available for
errors that affect the length of sentence, though not
the validity of the conviction—at least when the sentence
was imposed before United States v. Booker, 543 U.S.
220 (2005), held that the Sentencing Guidelines are not
mandatory. See Hawkins v. United States, 706 F.3d 820(7th Cir. 2013).
No other circuit follows either Davenport or Narvaez.
The latter decision has been rejected explicitly by Sun Bear
v. United States, 644 F.3d 700, 705 n.8 (8th Cir. 2011) (en
banc), and implicitly by McKay v. United States, 657 F.3d
1190 (11th Cir. 2011). The former is incompatible with
the law of many. See, e.g., Trenkler v. United States, 536
F.3d 85, 99 (1st Cir. 2008); Poindexter v. Nash, 333 F.3d 372,
382 (2d Cir. 2003); Okereke v. United States, 307 F.3d 117 (3d
Cir. 2002); San-Miguel v. Dove, 291 F.3d 257, 261 n.2 (4th
Cir. 2002); Wooten v. Cauley, 677 F.3d 303, 307–08 (6th Cir.
2012); Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012).
And the holding that the panel produces by combining
Davenport with Narvaez puts us in conflict with at least
two circuits, as the panel acknowledges, with no other
circuit on our side. See Gilbert v. United States, 640 F.3d
1293 (11th Cir. 2011) (en banc); In re Bradford, 660 F.3d
226 (5th Cir. 2011). Gilbert observed: “Every circuit to
decide this issue has reached the same conclusion we
do: the savings clause of §2255(e) does not permit a
prisoner to bring in a §2241 petition a guidelines miscal-
30 No. 12-1439
culation claim that is barred from being presented in
a §2255 motion” (640 F.3d at 1312).
Davenport held that §2255 is “ineffective” if the
argument was bound to fail at the time it should have
been presented. This is an abnormal use of “ineffective.”
Think of “ineffective assistance of counsel.” We do not
call a lawyer’s work “ineffective” just because the de-
fendant’s arguments have been considered and rejected
by the Supreme Court or the local circuit. A lawyer’s
work satisfies the “ineffective assistance” doctrine if
counsel presents the best available defense, even if that
defense is doomed. So too with §2255. A motion under
§2255 could reasonably be thought “inadequate or inef-
fective to test the legality of [the prisoner’s] detention” if
a class of argument were categorically excluded, but
when an argument is permissible but fails on the merits
there is no problem with the adequacy of §2255.
Brown could have presented at sentencing, on appeal,
and via motion under §2255 his current argument that
he should not have been classified as a career offender
under U.S.S.G. §4B1.1. Actually he did contend under
§2255 that his lawyer’s failure to object at sentencing to
the use of his prior conviction for arson amounted
to ineffective assistance of counsel. That contention
was rejected, not because §2255 disallowed it, but on the
merits, because it was based on a misunderstanding of
how suspended sentences work in Delaware. 2003 U.S.
Dist. L EXIS 1928 *15 (D. Del. Feb. 3, 2003). Brown did not
present at sentencing, on appeal, or through §2255 the
argument that has succeeded today: that arson in the
No. 12-1439 31
third degree under Delaware law is not “violent” for
federal sentencing purposes. Our panel thinks that
Begay v. United States, 553 U.S. 137 (2008), supports
Brown, and that may be so, but Begay did not hold
that either a direct appeal or a motion under §2255
would have been “inadequate or ineffective” to present
the argument that our panel now accepts.
Davenport believed that “sure to fail on the merits”
and “ineligible for consideration on the merits” come to
the same thing as a practical matter, so that §2255 is
unavailable or ineffective in either situation. Then §2241
affords relief if the argument becomes stronger in later
years. Yet “wrong on the merits” and “the court won’t
listen” differ. The petitioner in Bousley v. United States,
523 U.S. 614 (1998), contended that his omission of a
legal argument should be excused because, if it had been
raised, the court was sure to reject it. Five years after
Bousley was sentenced, the Supreme Court held in
Bailey v. United States, 516 U.S. 137 (1995), that the
word “use” in 18 U.S.C. §924(c)(1) means something
different from what every court of appeals had under-
stood it to mean. Bousley contended that he was entitled
to the benefit of Bailey. He was met with the reply that
his failure to present the line of argument that ulti-
mately prevailed in Bailey was a procedural default; to
this he replied that a losing argument should be treated
the same as an argument that can’t be made at all. The
Supreme Court rejected that contention and held that
normal rules of forfeiture and default apply, even if
circuit law is conclusive against the accused. 523 U.S.
at 621–24.
32 No. 12-1439
To the contention that an argument’s legal futility is
the same as a court’s inability to entertain the argument,
the Supreme Court was dismissive; it observed that
“futility cannot constitute cause [for an argument’s omis-
sion] if it simply means that a claim was ‘unacceptable
to the particular court at that particular time.’ ” 523 U.S.
at 623, quoting from Engel v. Isaac, 456 U.S. 107, 130 n.35
(1982). The panel in Davenport stated: “It would just
clog the judicial pipes to require defendants, on pain of
forfeiting all right to benefit from future changes in the
law, to include challenges to settled law in their briefs
on appeal and in postconviction filings.” 147 F.3d at 610.
Begay and Engel show that the Justices have a different
view. Arguments that contradict circuit law can serve a
purpose: If Brown had presented his argument earlier,
Begay v. United States might have come in 2000, as Brown
v. United States. The reason Begay came out as and when
it did was that Begay made his argument at sentencing
and pursued it all the way to the Supreme Court. Brown
could have done the same but didn’t. Bousley shows
that someone who knuckles under to adverse authority
at the appellate level cannot later contend that an ap-
parently losing position is the same as a position that
the judiciary refuses to entertain. The perspective of
the Supreme Court, articulated in Begay and Engel,
prevails over the perspective of the panel in Davenport;
and at all events one circuit’s ’druthers about optimal
litigation practice do not render §2255 “inadequate or
ineffective” to present a contention.
Begay has a proviso: relief under §2255 can be
available, even if a contention has been forfeited, when
No. 12-1439 33
a later decision shows that the prisoner is actually
innocent of a federal crime. See also Davis v. United
States, 417 U.S. 333 (1974). Since §2255 provides relief
to prisoners actually innocent of any federal crime,
§2254(e) precludes resort to §2241. Anyway, Brown
does not claim to be innocent of distributing cocaine
or of possessing a firearm despite a prior felony convic-
tion, the crimes of which he was convicted. Bousley
and Davis hold that relief is available to a person stuck
in prison for an act that the law does not make crimi-
nal. Brown is not remotely in that fix. He contends
instead that his sentence might have been shorter had
the district judge understood that his earlier arson con-
viction is not a “crime of violence” for the purpose
of U.S.S.G. §4B1.1. The Supreme Court has never held
that a person can be “innocent” of a longer sentence—
and in Hope v. United States, 108 F.3d 119 (7th Cir. 1997),
we concluded that §2255(h)(1), which allows a second
or successive collateral attack if the evidence did not
permit a trier of fact to find the defendant guilty, does
not authorize a contention that a prisoner is “innocent”
of a sentence’s particular length. One can be innocent of
a crime, Hope observed, but not of a sentence.
The prisoner in Schriro v. Summerlin, 542 U.S. 348 (2004),
contended that Apprendi v. New Jersey, 530 U.S. 466(2000), should be applied retroactively because it affects
the length of sentences. The Supreme Court rejected
that contention, distinguishing decisions about the
legality of primary conduct (Davis and Bousley) from
decisions about the length of sentences. Other than in
capital litigation, the Justices have never held that a
34 No. 12-1439
person can be innocent of a sentence. So the actual-inno-
cence exception to the rules of default does not
help Brown.
On this subject Davenport supports the United States
rather than Brown. Davenport had two petitioners. One
(Davenport) contended that his sentence was too long,
the other (Nichols) that he had not committed a crime.
The panel ruled in favor of Nichols and against
Davenport, who was outside the actual-innocence rule.
147 F.3d at 609–10. Davenport protested an enhance-
ment as an armed career criminal, and he lost; Brown,
whose situation is functionally equivalent to Daven-
port’s, nonetheless prevails. The reason is Narvaez, which
today’s panel implicitly treats as overruling the part
of Davenport that concerned Davenport himself. I grant
that Narvaez deemed an unduly long sentence equiva-
lent to conviction for a non-crime, but what I have said
so far shows why that is untenable.
Section 2255 can be used to reduce a sentence whose
length stems from a legal error. See Glover v. United
States, 531 U.S. 198 (2001). This shows yet again why
§2255 is neither inadequate nor ineffective to deal
with problems such as Brown’s—when the defendant
presents his contentions properly. The difficulty
with Narvaez is that it overlooks the defendant’s forfei-
ture, just as today’s panel overlooks Brown’s.† When a
†
Narvaez also permits an appeal from an order denying relief
under §2255 even when the district court’s error is entirely
(continued...)
No. 12-1439 35
defendant omits arguments at trial or sentencing, and
therefore must rely on the “actual innocence” doctrine
to excuse the default, it matters whether the problem
concerns guilt or the length of the sentence. I could see
extending the actual-innocence doctrine of Davis and
Bousley to sentences that exceed the statutory maxi-
mum, but both Narvaez and Brown received sentences
less than the cap. The disputes in both cases concern
how judges chose among authorized sentences.
Davenport and Narvaez in conjunction vitiate two amend-
ments to §2255 made by the Antiterrorism and Effective
Death Penalty Act of 1996. Section 2255(f) adds a one-
year statute of limitations and specifies four kinds of
events that open new one-year periods. Section 2255(h)
adds a limit on multiple §2255 motions, with two excep-
tions. Brown filed and lost a §2255 motion several
years ago, so he can file another only if §2255(h) allows.
Section 2255(h)(2) says that a successive motion is per-
missible when the prisoner relies on “a new rule of con-
stitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavail-
†
(...continued)
statutory, despite 28 U.S.C. §2253, which limits certificates of
appealability to substantial constitutional issues. See Slack v.
McDaniel, 529 U.S. 473, 483–85 (2000). An error of law differs
from a violation of the Constitution. See Wilson v. Corcoran,
131 S. Ct. 13 (2010); Bradshaw v. Richey, 546 U.S. 74 (2005);
Gilmore v. Taylor, 508 U.S. 333 (1993); Estelle v. McGuire, 502
U.S. 62 (1991). But that problem does not affect this case, so
I do not pursue the subject.
36 No. 12-1439
able.” Brown cannot use this exception, because Begay
is not a constitutional decision. See also Gray-Bey v.
United States, 209 F.3d 986 (7th Cir. 2000) (same conclu-
sion for Bailey). Nor has the Supreme Court declared
Begay to be retroactive.
Even if Begay were constitutional, and this were
Brown’s first collateral attack, he would lose because
he took too long to file his petition. Section 2255(f)(3)
gives a prisoner one additional year from “the date on
which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized
by the Supreme Court and made retroactively applicable
to cases on collateral review”. For this purpose, a court
of appeals as well as the Supreme Court may declare
a decision retroactive, see Fischer v. United States, 285
F.3d 596 (7th Cir. 2002); Ashley v. United States, 266 F.3d
671 (7th Cir. 2001), and I assume for the sake of argument
that Begay qualifies. But Begay was decided on April 16,
2008, and Brown did not launch his current collateral
attack until 2012.
Brown’s delay, and his prior resort to §2255, independ-
ently block that statute’s use to obtain collateral review.
He could have waited until the Supreme Court decided
Begay and then filed under §2255 within the next year.
Instead he squandered his opportunity under §2255 by
filing while it had little chance of success. Brown’s litiga-
tion strategy may have been “inadequate or ineffective”;
there’s no such flaw in §2255.
The AEDPA did not amend §2241 and does not limit
its scope. See Felker v. Turpin, 518 U.S. 651 (1996). But the
No. 12-1439 37
reason Brown cannot use §2241 lies not in that statute
but in §2255(e). What sense can it make to hold that the
1996 amendments to §2255 are self-defeating? Yet, by
combining Davenport and Narvaez, the panel concludes
that §2255(f) and §2255(h) make §2255 as a whole “inade-
quate or ineffective” because the AEDPA sets limits.
Laws should not be interpreted as self-cancelling.
The AEDPA’s amendments are designed to vindicate
society’s interest in the finality of criminal judgments.
See Harrington v. Richter, 131 S. Ct. 770 (2011). The
panel’s decision undermines finality by authorizing
successive, belated, collateral attacks. Brown was con-
victed in 1996; the conviction and sentence were
affirmed, 173 F.3d 422 (3d Cir. 1998); certiorari was
denied, see 526 U.S. 1153 (1999); he filed and lost a col-
lateral attack under §2255, 2003 U.S. Dist. L EXIS 1928 (D.
Del. Feb. 5, 2003); our opinion requires a new sentencing
in 2013 to apply a 2008 decision. The panel’s decision
also undermines the AEDPA’s provision that constitu-
tional claims can support successive collateral attacks
while statutory claims cannot; under today’s opinion, by
contrast, it is easier to get belated, successive review of
a statutory (or Guidelines) claim than of a constitutional
claim.
Finally, the panel’s decision undermines one of §2255’s
principal objectives: directing post-judgment litigation
to the sentencing court. Litigation under §2241 occurs
in the district with jurisdiction over the prisoner’s current
custodian. See Rumsfeld v. Padilla, 542 U.S. 426 (2004).
Brown was sentenced in Delaware, and the third circuit
38 No. 12-1439
may well disagree with our conclusion about how Dela-
ware’s crime of arson in the third degree should be classi-
fied for the purpose of U.S.S.G. §4B1.1. Brown litigated
and lost in the third circuit; he gets to try the seventh
circuit because he is in a federal prison in Indiana; and if
he had lost here, and later been moved to Colorado
or Texas, he could have tried again. It is not wise to
authorize sequential litigation in multiple circuits,
when the AEDPA embodies a legislative decision that
this sort of collateral litigation should not proceed in
any court.
Notwithstanding what I have said, Davenport and
Narvaez enjoy support in this circuit. I appear to be the
only judge who doubts their soundness. It would
therefore be pointless to sit en banc. Resolution of the
conflict belongs to Congress or the Supreme Court. That
is why I did not call for a hearing en banc following
the panel’s circulation under Circuit Rule 40(e).
5-10-13